“Spark the Discussion” is a monthly Legal Connection column highlighting the hottest trends in the emerging field of marijuana law. This column is brought to you by Vicente Sederberg, LLC, the country’s first national medical marijuana law firm.
By Joshua Kappel, Esq. and Rachelle Yeung
When Governor Hickenlooper signed Amendment 64 into law, proclaiming marijuana legal to use, possess and purchase for adults 21 years-old or older in Colorado, advocates barely paused to celebrate their victory – and opponents barely recognized their defeat.
Instead, all sides immediately began working on implementing this historic initiative through the Governor’s “Amendment 64 Implementation Task Force.” The Task Force, created by an Executive Order of the Governor, is comprised of 26 members, which were selected for their wide range of interests and expertise – from representatives of the Attorney General’s Office and the Department of Revenue to medical marijuana industry groups and other stakeholders.
The Task Force is assisted by committees, or “Working Groups,” each of which is co-chaired by a member of the Task Force and made up of additional stakeholders and members of the public. The five Working Groups are:
- Regulatory Framework
- Local Authority and Control
- Tax/Funding and Civil Law
- Criminal Law
- Consumer Safety and Social Issues
The various Working Groups have discussed a large range of issues, some of the issues are already addressed in the text of Amendment 64 while other issues appear almost unrelated. A full list of all the issues discussed, agendas, meeting times, and audio recordings are available on the Department of Revenue’s Amendment 64 Task Force website. The Task Force is scheduled to make its recommendations to the Governor, the State Legislature, and the Department of Revenue by the end of February.
During its first meeting, members of the Criminal Law Working Group came to a consensus that they should avoid tackling issues of driving under the influence of drugs (DUID) and industrial hemp. Despite being tasked with these issues, the Working Group decided discussing these would be a waste of valuable time and resources. In fact, Brian Connors, co-chair of the Working Group and representative of the Public Defender’s Office, noted, revisiting the DUID issue would be not only time-intensive, but redundant. The legislature and the Colorado Commission on Criminal & Juvenile Justice have been researching the question for well over two years, and have developed far more familiarity with the topic. In fact, a marijuana related DUID bill was recently introduced in the state legislature that appears to strike a compromise between the various stakeholders.
Instead, the Criminal Law Working Group will focus on determining legal definitions and confronting law enforcement issues. For example, can evidence of marijuana alone be the basis for probable cause? In the event of a dismissal or ‘not guilty’ verdict, do law enforcement agencies have a duty to maintain seized marijuana plants? This Working Group has also veered off path to discuss completely unrelated issues such as requiring drug tests for all minors who apply for a driver’s license.
The Tax/Funding and Civil Law Working Group, among other things, addressed the issue of banking for state licensed marijuana businesses. Because marijuana is still illegal under federal law, most banks are fearful of handling funds related to marijuana. However, all parties involved, from marijuana business owners to representatives of the Colorado Bankers Association agreed that the fledgling marijuana industry could not depend entirely on cash transactions. Unfortunately, the Working Group was faced with a serious shortage of viable alternatives, and in the end, resolved only to write to the Federal Government, requesting further guidance.
The Regulatory Framework Working Group kicked off its first meeting by examining existing regulatory frameworks and deciding which framework to model recreational marijuana on – specifically, whether to base it on our medical marijuana code or our alcohol/liquor code. Amusingly, one of the first issues to come up was whether to require vertical integration, which the medical marijuana code mandates, or prohibit it, which is the case with liquor.
One suspect issue was also brought up by the Regulatory Framework Working Group: whether to recommend a residency requirement for those who are going to purchase marijuana from a licensed store. This issue caught many people by surprise as Amendment 64’s personal protection clause makes clear that “possessing, using, displaying, purchasing, or transporting marijuana” is now legal under state law for persons over the age of 21. The plain language of Amendment 64 applies to all adults aged 21 or older.
In addition to the issues covered by the other Working Groups, the Local Authority and Control Working Group is working to resolve: What can local jurisdictions regulate? What will be the local controls regarding advertising? What/who is the local authority over fines and licensing? Lastly, the Consumer Safety/Social Issues Working Group is working to resolve issues associated with: advertising and marketing to minors; product labeling and packaging; product testing; and consumer, public, and industry education.
Surprisingly, a significant number of vocal marijuana opponents managed to secure positions on the Governor’s Task Force and in the working groups; however, the Task Force is not supposed to debate the merits of Amendment 64 or impede its implementation. Additionally, not all issues discussed by the Task Force will or should become recommendations of the Task Force, let alone a bill or regulation. The Task Force should only make recommendations that are both legally sound and good public policy. For example, a residency requirement on marijuana purchases, although discussed by one of the working groups, would be bad public policy because it would only perpetuate another black market and derive the state of tax revenue – exactly what the voters of Colorado wanted to prohibit with Amendment 64. Additionally, such a significant statutory limitation on Amendment 64 may not withstand legal scrutiny.
Considering the Task Force has a mandate from the 55% of our electorate that voted for Amendment 64 and that they have less than a month now to make their recommendations, we can only hope that the proponents and opponents of marijuana reform can work together, stay on track, and focus on implementing the will of the voters. Nonetheless, we will all have to wait and see on what the Task Force actually recommends.
 It is worth noting that the Task Force really doesn’t have to address any issues besides funding the Department of Revenue to make rules because Amendment 64 is self-executing.
 Generally in Colorado, self-executing initiatives cannot be narrowed, impaired, or limited by the legislature. Yenter v. Baker, 126 Colo. 232, 236-237 (Colo. 1952); See also Zaner v. City of Brighton, 917 P.2d 280, 283 (Colo. 1996).